June 13, 2009

Listen to what Beth wrote: "Shhh, Meade. People are going to think you're a fictional character. I knew it as soon as I saw that picture of him on a porch, reading the paper. Hey, I have that same man at home!" (Well, maybe Beth just has the same model coin-operated boy....)

On May 1, having received notice that Justice Souter will retire, President Obama said:

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

Let’s assume that the President — who used to teach constitutional law — has arrived at this preference through studying the cases that we studied in this course. [We studied equal protection and due process.] He might see various of the opinions as the product of “some abstract legal theory or footnote in a case book.” Other opinions might seem to him to spring from an awareness of “how our laws affect the daily realities of people's lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation” and so forth.

Don’t assume the listed “daily realities” are the only “daily realities” that he thinks a Justice should “understand and identify with” to “arrive at just decisions and outcomes.” And consider that he merges this “quality of empathy” with dedication to the rule of law, honor for constitutional traditions, and respect for “the integrity of the judicial process and the appropriate limits of the judicial role.”

Where, in the cases that we studied, has it mattered whether a Justice followed abstract theories and dry text from case books instead of the things the President wants from a Supreme Court Justice? Choose specific opinions (majority, concurring, or dissenting) ... that illustrate the two types of judicial reasoning that the President contrasted....

[L]ooking at the opinions you have written about, take a position on the importance of the quality of empathy in a Supreme Court Justice.

I read nearly 60 exams, and it was interesting to see which cases were chosen in the 2 categories. One case clearly won the prize for most empathetic. Perhaps you can guess. Interestingly, one opinion that was frequently presented as empathetic was also cited a few times as an example of the abstract type. That's not surprising: a judge driven to a conclusion by empathy might strive mightily to present the decisionmaking process in dryly abstract terms.

(The students took the exam before Obama nominated Sonia Sotomayor.)

ADDED: Thanks to Glenn Reynolds and Jonathan Adler for linking. It's especially interesting to see the comments over at Volokh Conspiracy, and a couple readers thought my question was "ridiculous" or "unfair," so let me say this. First, it was an open book/open notes exam — so there is no value to getting students to recite doctrine. Second, in my conlaw classes, we concentrate on the different approaches to interpretation, and the exam tests for that. Third, my students had examples of my old exams and had every reason to expect something like this. A few days before the exam, I was sitting in a café and a student came up to me and just had to tell me that "Facebook was lit up" with my students trying to predict the question. There was a lot of focus on the Souter retirement. I wouldn't be surprised if some of the predictions came very close to the actual question asked.

Some Volokh commenters imagine that I had particular cases that I wanted the students to present as the right answers. I absolutely did not. What I gave most credit for was serious engagement with the problem of empathy — how it can extend to both sides in many cases and the different ways that empathy is expressed in the language of the cases. I especially liked when students broke through the surface of empathy vs. abstraction and did not simply convert it to liberal vs. conservative. I myself am convinced that Justice Scalia's interest in tradition springs from an emotional place. Read his dissents in United States v. Virginia and Lawrence v. Texas again and think about it. From the Virginia case:

I do not know whether the men of VMI lived by this ["Code of a Gentleman"]; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.

I am looking for intellectual engagement with ideas and with the texts of the opinions, and the students did an excellent job (especially with only 3 hours to do it).

And in case you are wondering what opinion won the empathy prize: here it is.

"The real question is not whether these cities shrink – we're all shrinking – but whether we let it happen in a destructive or sustainable way," said [Dan Kildee, treasurer of Genesee County, Michigan, where Flint is located]. "Decline is a fact of life in Flint. Resisting it is like resisting gravity."...

Choosing which areas to knock down will be delicate but many of them were already obvious, he said.

The city is buying up houses in more affluent areas to offer people in neighbourhoods it wants to demolish. Nobody will be forced to move, said Mr Kildee.

"Much of the land will be given back to nature. People will enjoy living near a forest or meadow," he said.

Mr Kildee acknowledged that some fellow Americans considered his solution "defeatist" but he insisted it was "no more defeatist than pruning an overgrown tree so it can bear fruit again."

Nobody will be forced to move? People will enjoy living near a forest or meadow?

First, I'm sure people will be forced to move if this thing gets going.

Second, you can't just return to nature by removing the streets and buildings. What will these non-urban buffer zones really look like? Even if it is something like a forest — made of very fast-growing trees? — or meadow, what sorts of animals — rodent and human — will run wild there?

I don't mean to be completely negative. Just asking a couple obvious questions.

Every night for the last two months, thousands of abortion opponents across the nation logged on to a blog run by the suburban Chicago woman who identified herself only as "B" or "April's Mom."

People said they prayed that God would save her pregnancy. They e-mailed her photos of their children dressed in pink, bought campaign T-shirts, shared tales of personal heartache and redemption, and sent letters and gifts to an Oak Lawn P.O. box in support.

As more and more people were drawn to her compelling tale, eager advertisers were lining up. And established parenting Web sites that oppose abortion were promoting her blog -- which included biblical quotes, anti-abortion messages and a soundtrack of inspirational Christian pop songs.

By Sunday night, when "April's Mom" claimed to have given birth to her "miracle baby" -- blogging that April Rose had survived a home birth only to die hours later -- her Web site had nearly a million hits.

But the doll — the doll — was too much. She should have figured that some of those readers know their dolls.

Why can't we see the blogger — Beccah Beushausen — as a fiction writer?

She didn't set out to trick or cheat thousands of readers. She got people emotionally involved in a story that they believed was true, but she didn't solicit money from them — only sympathy and prayers — and she didn't cause them to panic in any sort of a "War of the Worlds" kind of a way. She didn't even rope in Oprah, in that "Million Little Pieces" way.

I say: leave Beccah alone.

AND: Lest you think I engage in such fictions, let me recommend one of my favorite songs:

IN THE COMMENTS: Meade responds to coin-operated boy with beer-activated girl:

Great. Feminism properly stands separate from Democratic and Republican politics. NOW notes that at the end of the Letterman shaming:

[I]'s important to note that when Chelsea Clinton was 13 years old she was the target of numerous insults based on her appearance. Rush Limbaugh even referred to her as the "White House dog." NOW hopes that all the conservatives who are fired up about sexism in the media lately will join us in calling out sexism when it is directed at women who aren't professed conservatives.

Somehow, in the Clinton era, we as a nation freaked out about heath care reform, but this time — this time — we'll swallow our government-dosed medicine.

Kristof is all: "In 1993, the 'Harry and Louise' commercials frightened Americans into abandoning health reform. Let’s ensure those scare tactics don’t work this time." Well, what about lull tactics? If those work, there's no do-over.

Never had it. It wasn’t a single light-bulb moment. Instead, I did this pro bono lawsuit (that was unsuccessful) for twins of a Nazi concentration camp. And during the four-year course of gathering documents and doing research, I became an expert of sorts on the so-called Angel of Death, Josef Mengele. When the suit was over, I approached a publisher, McGraw-Hill, without an agent, and they figured this obsessive work of mine might make a good biography. I never expected to never practice law again. But I so liked writing the book (a bit like doing a giant brief on a tight deadline) that I never looked back....

Do you think your legal background gives you an edge as a reporter?

Big time. The major thing is that I’m not afraid of documents, after getting used to them in the antitrust litigation against IBM while at Cravath. So when I approached the JFK assassination, reporters would say there are tens and tens of thousands of pages of docs. And I’d think, “So?” Also, non-lawyers tend to be more impressed with a legal degree than they should—it helps open up doors.

Really, why are people even allowed to see movies? God knows how they might interpret them. I knew this one guy one time who saw a movie and concluded that it could be understood on multiple levels. Moviemakers have the obligation to nip that sort of mind-wandering in the bud. Channel us, please!

"Deep water animals have trouble adapting," said Ken Peterson, an aquarium spokesman. "We were a bit disappointed that it wasn't here longer to connect with visitors face to face."...

The shark is distinguished by thornlike scales and two dorsal fins near the tail. The species is found around the Pacific Rim at depths of 3,000 feet. It is a sluggish bottom-dweller that feeds on fish, other sharks, octopus, squid and crustaceans

Well, plunge some of those face-time-seeking visitors into the ocean depths and see how good they are at adapting.

"The A.M.A. does not believe that creating a public health insurance option for non-disabled individuals under age 65 is the best way to expand health insurance coverage and lower costs. The introduction of a new public plan threatens to restrict patient choice by driving out private insurers, which currently provide coverage for nearly 70 percent of Americans."

If private insurers are pushed out of the market, the group said, "the corresponding surge in public plan participation would likely lead to an explosion of costs that would need to be absorbed by taxpayers."...

The medical association said it “cannot support any plan design that mandates physician participation.” For one thing, it said, “many physicians and providers may not have the capability to accept the influx of new patients that could result from such a mandate.”

Oh, look at that! An entire 140-character tweet fits in the Blogger headline window, even with quotes added. Room to spare too. Surprising, considering that I often run out of space for things I want to cram into that large colored print zone.

annalthouse Obama at the Obama museum, where even the wallpaper is Obama. http://tinyurl.com/kk5x8dless than 5 seconds ago from web

annalthouse Must there be a thunderstorm every morning at 5 a.m.? Ah, maybe I'd love to adapt to exactly that.1 minute ago from web

"From web"... I sound like a spider!

Follow me on Twitter. Please. I have 1,103 Followers — yeah, it's capitalized— on Twitter and — do you think it's pathetic? — it means a lot to me. The writing over there is different. Some things don't make it through my blog filter. Some things don't make it through my Twitter filter either. Twitter's just that zone between 2 filters. I'm inviting you to see what collects there.

Do you think it's narcissistic of me? I took this narcissistic personality inventory yesterday, after blake tweeted it, and scored a 14 out 40. "The average score for the general population is 15.3. The average score for celebrities is 17.8." Actually, I took it a second time — with someone else — and got a 19. I don't know if it was the presence of a co-quiz-taker that boosted my score or the fact that I was taking it a second time. The choices require interpretation, and reading something a second time, you see new angles, new reasons to veer one way or the other as you decide which of 2 things you wouldn't say sounds more like something you would say.

Ah! What if one thought each exam should be read twice? And why not 3 times? Do you ever wonder why lawprofs miss grading deadlines? Some of them genuinely fret over what is the one true grade for each exam. Others dither and delay or just quite simply can't maintain the concentration long enough. Law profs who twitter and blog — what kind of concentration do these characters maintain?

It's still raining. The above-quoted tweets have aged to the half-hour vintage. It's still dark. A few different birds have determined it's time to — oh! — to tweet.

Von Brunn maintains a white-supremacist Web site, HolyWesternEmpire.org. The biography of Von Brunn on the site states that he spent over six years in federal prison for attempting to "place the treasonous Federal Reserve Board of Governors under legal, non-violent, citizens arrest." A World War II veteran and resident of Maryland, Von Brunn is the author of a pamphlet entitled "Kill the Best Gentiles: A new, hard-hitting exposé of the JEW CONSPIRACY to destroy the White gene-pool." He is a Holocaust denier who has written that "Hilter's worse mistake" was that "he didn't gas the Jews."

I found that 7 types of bookstore customer post via an Ezra Klein tweet. Ezra parks himself in the category "Browser."

I think there's an 8th category, into which I'd put myself. "Reminiscer." This is someone who used to hang around bookstores all the time and leave with a pile of miscellaneous books, but now drops in only occasionally, looks around, and remembers when she didn't spent nearly all of her reading time on line. Now, all those book covers look like front pages of websites. She might click on a few — i.e. open them up and read a few lines, maybe even a few pages — and then she contemplates the way she used to feel that she needed to make these blocky objects into personal possessions and proceed through them systematically, front to back. Then she shakes off that reverie and goes somewhere else, somewhere where the WiFi is free.

She seems to want some kind of Mullah Obama, who can parse religions in expert ways so as to provide a path in which all religious devotees can, at the same time, be convinced by their own misunderstanding of others and the wrong nature of their own religious awareness that invokes chaos.

She wants a Messiah, a clear figure who dashes aside millennia of religious and cultural conflicts within a single speech. And, the fact is, people don't even want to listen to a messiah on these topics. The issue is religious but it's so much more than religious. It's about ego, and power, and control, using religion as a tool as much as a source.

Obama's lack of fervor is probably the best thing that can be delivered to a region wracked with fervor. Blessed are the peace-makers, after all.

Fervor is not overcome by more fervor, a waged war of passion. Rather, fervor is overcome by refusing to engage in the frenzy, absorbing and deflecting the rage into something constructive. The sins of the world are not addressed by talking them over in excited and rhetorically impressive ways.

She is conflating fervor with belief and frenzied excitement with persistent character. Most fundamentalists aren't acting out of real fervor for their chosen god, most are acting out of insecure egos who are attempting to manipulate the seen world so as to secure their own identity as dominating and secure their meager faith in some kind of obvious sign of their supposed devotion.

The religious passions of so many are not really religious at all, but are expressions of a deep-seated insecurity in the face of a rather dismissive world.

Obama's approach won't really change anything, but America is not the salvation of the middle east, and cannot leap into the frenzy with the same passion. We are the people who can show, in our actions, what it means to live for something greater -- our children, our future, our peace -- and how a steady approach is the way lives are built and rebuilt.

The Middle East does not need more fervor. It needs calm, but a calm that is trustworthy, and listening, and pushes for real changes in substantive ways within the societies themselves, pointing out that the answer is within not by changing someone else.

Well, he certainly played the gay card well. He didn't acknowledge it but put out plenty of hints on YouTube prior to the show, refused to answer questions about his sexuality after the show was over just long enough to be "in the closet" and therefore able to stage a big coming out thing, used coming out as a way to get the best magazine cover you could possibly get, and somehow managed to negotiate a deal where that very magazine cover would make no mention of his coming out in the article and would appear to just be about how "wild" he is as a performer. On the show, he got all the credit for being out without having to deal with any of the consequences, and now he gets the big cover but gets the appearance of it not being about his coming out. He is quite media savvy and played the game for maximum attention.

Oh, I do like that he acknowledges in the article that he's fat. Bad skin isn't quite as much of a revelation, and people can forgive bad skin, but people act like he's hot when he's quite out of shape and can't possibly look good naked. But props to him for admitting it.

"Mona Lisa. Please, someone do it! The sly smile would be so perfect," said Kentuckyliz, in that post yesterday where I'd asked for Photoshoppings of Obama in French impressionist/post-impressionists paintings.

Sent to me by an emailer who bemoans his own lack of Photoshopping skills and says he's always wanted to concoct "Newt Descending a Staircase." Here's "Nude Descending a Staircase." Can anyone do the 'shopping for us?

[Jolie] managed the almost unheard-of task of turning the home-wrecker label into a wholesome, family-friendly triumph. There was little Maddox, who was growing up and clearly enjoying tossing footballs with his mother's new boyfriend. Jolie had managed to head off the scarlet letter by giving a boy an ideal masculine counterpoint....

[S]he took for her own pleasure the male seen as the most desired of the tribe, Brad Pitt, who is always ranked at the top of indexes of male beauty and virility. As for the constraints of social convention — ahem, he was still married? You can have a variety of feelings about this, but Jolie's evident disdain of that social constraint certainly, for better or worse, put her in the same self-entitled category as those men who have traditionally taken what they wanted and let the emotional chips fall where they may.

"Ideal masculine counterpoint"... you mean in terms of ideal "male beauty and virility"? A boy needs a role model... if he is to grow up to fit the traditional "self-entitled category" that we admire so much... at least in a woman... or whatever....

Okay. But, now, wait. $100 million. I forget. That's a lot of money, right? We're supposed to think that when we're supposed to think that. But at other times, $100 billion is hardly worth noticing.

Those holding 92 percent of the $6.9 billion in secured debt already approved a deal that would give bondholders $2 billion. Together, Indiana pension funds said they had $42 million invested in Chrysler, less than 1 percent of its secured debt. They paid about 43 cents on the dollar to acquire their share and, under Chrysler's plan, would get back 29 cents on the dollar.

The bankruptcy judge said, in effect, that these small players should not stand in the way of a deal that could save Chrysler and keep the company in business making cars and trucks.

So $42 million is chump change. And the rule of law? No time for that! It's an eeeemmmmerrrrrgenceeeeee.

What great fun for the culture ideologues as well as the many of us who think it's such a drag to always have to talk about the wars and the economy! What does she think of the gays? What does she think of abortion? Is she an activist? Hmm????

How racist/denigrating/offensive is that riff anyway? Should it be avoided in mainstream pop culture?

... I have a feeling that there might be some kind of connection between the development of a need for a distinct, somewhat comical, caricaturic musical way of signalling Asia, and the apparent desire for material that ridiculed Asians or "put them into place." (Although it is true that more or less ridiculous musical clichés have developed for pretty much everything during the 20th century, in connection with the rise of cinema and television and their usage of background music.)

But I am no musical sociologist or such and don't really feel capable to connect the threads and interpret what the bigger story is which the rise of this cliché-phenomenon tells. And this project is still in the stage of gathering the evidence.

[Y]es – I criticized [Ed] Whelan rather harshly. But that’s what the blogosphere is about. Blogging is not for the thin-skinned. And you would think that someone who spends their days trying to destroy other people’s reputations in dishonest and inflammatory ways wouldn’t be so childish and thin-skinned.

Anyway, I’m not sure whether I’ll start posting under my own name or not. And there were several people who already knew – it’s not like this is a state secret. But still, if I wanted my name out on this blog, I would have done so. It should have been my choice.

Here's Ed Whelan, exposing "publius" in the National Review. On what grounds?

In the course of a typically confused post yesterday, publius embraces the idiotic charge (made by “Anonymous Liberal”) that I’m “essentially a legal hitman” who “pores over [a nominee’s] record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist.” In other of his posts (including two which I discussed here and here), publius demonstrated such a dismal understanding of the legal matters he opined on—including, for example, not understanding what common law is—that it was apparent to me that he had never studied law.

Well, I’m amused to learn that I was wrong about publius’s lack of legal education....

Whelan wanted to do a "you a law professor" attack on his opponent. You've got to establish that the person is a law professor first, of couse, but it's not really worth doing, especially if the blogger isn't using his status as lawprof to bolster his opinion.

"You a law professor" attacks are a running joke here on my blog, because they've been aimed at me so often. I don't flaunt my status as a lawprof, but I know it's part of the sense of what this blog is. Even so, I think "you a lawprof" is a pretty lame argument, normally wielded by opponents who don't want to bother making substantive points. It's about on the level of proclaiming you're a moron.

I think blogging anonymity is fine — though in the absence of a track record I tend to trust anonymous bloggers less — but is it a “despicable” act to identify an anonymous blogger? I’d say it depends. Certainly the political operative who leaked the Foleygate story via an anonymous blog had no right to anonymity. On the other hand, what about people who blog in a non-hitjob fashion but just want to avoid job repercussions? I’m more sympathetic there. But if you appoint yourself someone’s anonymous blogging nemesis, you can probably expect to be outed.

I think you should expect it and be fully aware of the risk, but it would take a lot before I would feel justified exposing someone who had chosen the cloak of pseudonymity, certainly something quite different from the usual name-calling, insults, and bad arguments and criticisms, no matter how unfair or vicious.

Publius now needs to decide if he wants to merge his professional identity with his blogging identity and blog under his own name. This is a subject I examined back here, responding a lawprof colleague of mine who had chosen pseudonymity. I said:

Oscar wants to be free to use naughty words and otherwise break out of the professorial mode. But my experience is that even though students know who I am and can and do read this blog, they seem to accept this as a separate mode of mine and don't use it as a basis for talking to me in a newly confidential way. In the law school, the student-professor relationship is very well established. It really doesn't break down, even when students read your personal journal.

Of course, there are things I won't say here, but these are things I wouldn't say even if I used a keyboard name. I would never insult or demean or deliberately hurt the feelings of students. I wouldn't casually knock my law school (though there are some considered criticisms I would be willing to make). I wouldn't hurt my family or acquaintances or even reveal much of anything about them (without permission). So there aren't really any significant ways using my own name limits me. Like Oscar, I care immensely about freedom as I do this blogging. But I also want to be aware of myself as an identifiable person, responsible for what I say (which is true whether you use a pseudonym or not). And I don't mind getting personal credit for anything good I might happen to say. Also, I kind of like being a public persona.

Do they really? Or has Sotomayor been rising to the top of the liberal pile by burbling the platitudes white liberals love, while Thomas got noticed by stating the views that white conservatives want to think are true and just. The headline reads "For Sotomayor and Thomas, Paths Diverge at Race," but it's not hard to make the argument that what they've done is more the same than different.

It's so easy to start a blog. Naturally, many are quickly abandoned or rarely updated or unreadable or just unread. Why would anyone think that just starting a blog is anything — other than a personal gesture of expressive openness? Why would anyone ever have realistically thought now I'll be famous or soon I can quit my job?

I don't see any new trend here. It's the same as it always was. (Including the way the NYT wishes blogs would die.)

I love Tiny Tim's total commitment to his character and style, Johnny's perfect mix of niceness and sarcasm, and Tim's sweetly stated superior knowledge of music history. Here's the original that Johnny didn't know:

"Things that bother you never bother me..."

IN THE COMMENTS: Mr. Forward says:

Happy Tune from the the 30's?

Sounds like Secretary of the Treasury "Tiny Tim" Geithner.

"What bothers you doesn't bother me."

Bissage says:

My father worked with Miss Vicki's uncle and I was very young when he brought me along for a visit.

That was the first time I heard the expression "hippie weirdo freak."

In such ways are the incentives to conform made known to small children.